26 - 28 Rene Street [2003] QBCCMCmr 93 (29 August 2003)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by SynRG Pty Ltd, the Owner of lot 3

I hereby order that the application for orders:

a) That the last annual general meeting held on 19 November 2002 be declared invalid.
b) That the minutes of the annual general meeting held on 1 November 2001 be amended by deleting "2. Washing of vehicles" under the "Other Matters" section.
c) That the body corporate appoint a new body corporate manager, or alternatively, the body corporate instruct the body corporate manager to become cognisant with its duties and to act reasonably and without bias to all members.
d) That the body corporate instruct the body corporate manager to give its written authority to allow East Coast Insurance Brokers to disclose information and discuss insurance particulars with Mary Ann Saitz on behalf of owners.
e) That solicitors’ fees resulting from contentious motions proposed or submitted by D Voght be paid for by D. Voght.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0107-2003

"26 - 28 Rene Street" CTS 18242

The applicant, SynRG Pty Ltd, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

It should be noted at the outset that orders (b) and (d) above will not be required as subsequent events have rendered the orders unnecessary. Firstly, the minutes of the annual general meeting held on 1 November 2001 were amended in the manner requested by the applicant, at the extraordinary general meeting held on 24 February 2003. Secondly, the body corporate manager wrote to the insurance brokers on 20 November 2002 confirming that Mary Ann Saitz was the nominee for SynRG Pty Ltd, and authorising the brokers to provide insurance details for the scheme directly to Ms Saitz.

In the supporting grounds, the applicant claims that the annual general meeting held on 19 November 2002 should be invalidated because the meeting was chaired by Mr Larry Richards, on behalf of the acting body corporate manager. The applicant further claims that as the chairperson was present, he should have chaired the meeting. In his submission, Mr Richards states that Richards Body Corporate Management has been appointed, and re-appointed as body corporate manager since the first annual general meeting was held on 4 August 1994. Mr Richards further states that Richards Body Corporate Management was most recently reappointed on 24 February 2003.

Section 46 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) by which this scheme is regulated, provides as follows:

(2) A person elected (with the person’s consent) by the persons present

meeting.

Submissions from two of the other owners present at the meeting confirmed that Mr Richards chaired the meeting with the consent of all present at the meeting. These owners also confirmed that the applicant made no objection to Mr Richards’ chairmanship at the meeting. I do not propose to invalidate the meeting on this basis.

The applicant also complains that certain motions were decided by a poll. The other owners who responded to the application state that the poll was agreed upon by those present. It is in fact not necessary for those present to agree to a poll. A poll can be requested by a person entitled to vote at the meeting, and then certain requirements must be met in accordance with section 109 of the Act. On the material available to me, those requirements were met. I do not propose to invalidate the meeting on this basis.

The applicant seeks a further order that the body corporate manager be instructed to "become cognisant with (sic) its duties and to act reasonably and without bias to all members."

A body corporate manager provides administrative support to a body corporate. Except in relation to run-of-the-mill day to day activities, the body corporate manager takes direction from the body corporate committee.

One of the applicant’s allegations against the body corporate manager is that Mr Richards refused and/or failed to provide written authority for Mrs Saitz to obtain insurance details to verify Mr Richards’ claim that insurance premiums had escalated as a result of shipping containers being placed on the common property. The annual general meeting was held on 19 November 2002, and Mr Richards wrote to the insurance broker on 20 November 2002 authorising the release of insurance information directly to Mrs Saitz. Whilst there may have been earlier requests by Mrs Saitz of which I am unaware, on the face of the material before me there is no evidence that Mr Richards refused and/or failed to provide the necessary authority for Mrs Saitz to obtain such details as she required in relation to insurance.

Another of the allegations against the body corporate manager relates to parking spaces. Mrs Saitz refers to section 37 of the Act (now section 35) which deals with ownership of common property, as evidence to support her claim that Mr Richards was incorrect in his advice to the meeting that the applicant had the right to use one parking space, and would require the consent of the owners of lot 4 to have the right to a second parking space. The by-laws of this scheme confer exclusive use of certain parking spaces to each lot owner. The applicant’s lot has been allocated one parking space, as have lots 2, 4 and 5. Lot 1 has been allocated two parking spaces. By-law 2 also provides that owners shall not park or stand any motor or other vehicle upon the common property except with the consent in writing of the body corporate. The other car parking spaces delineated on the plan attached to the by-laws are presumably to be used for visitor or client parking. There is no automatic entitlement by owners to those parking spaces. The material before me does not support the assertion that Mr Richards’ advice was incorrect, or that he acted in a biased manner to the applicant in making the statement attributed to him.

I am not satisfied that the allegations against the body corporate manager have been substantiated. I do not propose to make the order sought.

Finally, the applicant seeks an order that solicitors’ fees resulting from contentious motions proposed or submitted by Mr Voght be paid for by him. There is no evidence before me that Mr Voght ever had any intention of claiming such fees from the body corporate. Mr Voght confirmed this in his submission, and stated: "We have taken this course of action at our own expense to address the continual problems caused by the owners of lots 3 & 4 and her business associate Tewantin Removals by their unreasonable and illegal use of other people’s property." Mr Voght made the point, however, that any fees associated with the body corporate’s response to the actions taken by the applicant are now a body corporate expense.

In his submission, the body corporate manager stated that the body corporate committee had informally agreed to accept the costs of submitting the motions to the annual general meeting. Such a decision would have to be formalised to have any effect. Furthermore, unless the fees were within the committee’s level of spending, the matter would have to be approved by owners in general meeting. It seems from the material provided that there has been ongoing disputation over the use of common property. It is unsurprising that owners have decided to take action to resolve the issue. Given this decision, then the question of costs should properly be decided in whatever forum the proceedings are commenced. I decline to make the order sought in this regard.

I have therefore dismissed the application in its entirety.

Number of Scheme:	18242
Name of Scheme:	26 - 28 Rene Street
Address of Scheme:	26 - 28 Rene Street NOOSAVILLE QLD 4566

a)	That the last annual general meeting held on 19 November 2002 be declared invalid.
b)	That the minutes of the annual general meeting held on 1 November 2001 be amended by deleting "2. Washing of vehicles" under the "Other Matters" section.
c)	That the body corporate appoint a new body corporate manager, or alternatively, the body corporate instruct the body corporate manager to become cognisant with its duties and to act reasonably and without bias to all members.
d)	That the body corporate instruct the body corporate manager to give its written authority to allow East Coast Insurance Brokers to disclose information and discuss insurance particulars with Mary Ann Saitz on behalf of owners.
e)	That solicitors’ fees resulting from contentious motions proposed or submitted by D Voght be paid for by D. Voght.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

26 - 28 Rene Street [2003] QBCCMCmr 93 (29 August 2003)